Citation Nr: 0916157
Decision Date: 04/30/09 Archive Date: 05/07/09
DOCKET NO. 06-08 540 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to service connection for a lung disability.
REPRESENTATION
Veteran represented by: California Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
V. Chiappetta, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army
from March 1951 to July 1953.
This matter is before the Board of Veterans' Appeals (the
Board) on appeal of a July 2005 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Oakland, California which denied the Veteran's claim of
entitlement to service connection for emphysema and fibrosis
of the lungs claimed as due to exposure to fuels during the
Korean War.
The Veteran testified at a Travel Board hearing which was
chaired by the undersigned Veterans Law Judge at the Oakland
RO in March 2009. A transcript of the hearing has been
associated with the Veteran's VA claims folder.
At the March 2009 hearing, the Veteran submitted evidence
directly to the Board, accompanied by a waiver of
consideration of such evidence by the agency of original
jurisdiction. See 38 C.F.R. § 20.1304 (2008).
This appeal has been advanced on the Board's docket pursuant
to 38 C.F.R. § 20.900(c) (2008). See also 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
Issue not on appeal
In a December 2008 rating decision, the RO denied the
Veteran's claim of entitlement to an increased (compensable)
disability rating for service-connected bilateral hearing
loss. To the Board's knowledge, the Veteran has not
disagreed with the RO's decision. Accordingly, the issue is
not in appellate status. See Archbold v.
Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A.
§ 7105(a), the filing of a notice of disagreement initiates
appellate review in the VA administrative adjudication
process, and the request for appellate review is completed by
the claimant's filing of a substantive appeal after a
statement of the case is issued by VA].
FINDINGS OF FACT
1. The evidence of record demonstrates that the Veteran was
exposed to fuel fumes while serving as a pipeline supervisor
on active duty in Korea.
2. The medical evidence of record indicates that a
relationship exists between the Veteran's current lung
disability and his exposure to fumes while serving on active
duty.
CONCLUSION OF LAW
A lung disability was incurred in active military service.
38 U.S.C.A. § 1110, (West 2002); 38 C.F.R. § 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran claims entitlement to service connection for a
lung disability.
In the interest of clarity, the Board will first discuss
certain preliminary matters. The issue on appeal will then
be analyzed and a decision rendered.
The Veterans Claims Assistance Act of 2000
The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000 (VCAA). The VCAA
includes an enhanced duty on the part of VA to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits. The VCAA also
redefines the obligations of VA with respect to its statutory
duty to assist claimants in the development of their claims.
A VCAA notice letter was sent to the Veteran regarding his
service connection claim in May 2005. The letter appears to
be adequate. The Board need not, however, discuss in detail
the sufficiency of the VCAA notice letter in light of the
fact that the Board is granting the claim. Any potential
error on the part of VA in complying with the provisions of
the VCAA has essentially been rendered moot by the Board's
grant of the benefit sought on appeal.
The Board also notes the Veteran has been provided notice
regarding degree of disability and effective date as required
by the decision of the United States Court of Appeals for
Veterans Claims in Dingess v. Nicholson, 19 Vet. App. 473
(2006) in a March 2006 letter from the RO. As discussed in
detail below, the Board is granting the Veteran's claim. It
is not the Board's responsibility to assign a disability
rating or an effective date in the first instance. The Board
is confident that if required, the Veteran will be afforded
any additional appropriate notice needed under Dingess.
Accordingly, the Board will proceed to a decision on the
merits as to the issue on appeal.
Relevant law and regulations
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303 (2008).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002);
38 C.F.R. § 3.303(d) (2008).
In order to establish service connection, there must be
(1) medical evidence of a current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the current disability. See Hickson v.
West, 12 Vet. App. 247, 253 (1999).
Analysis
As noted above, the Veteran claims that his in-service
exposure to fuel fumes while serving as a pipeline supervisor
caused him to develop his current lung disability.
With respect to Hickson element (1), current disability, the
Veteran was diagnosed with "pulmonary emphysema" and
"bilateral basilar pulmonary fibrosis" in an August 2001
MRI report by Dr. R.T.W. Subsequently, the Veteran was
diagnosed with interstitial lung disability and chronic
obstructive pulmonary disease (COPD). See the April 12, 2005
private medical report of D.M., D.O. Accordingly, Hickson
element (1) is satisfied.
With respect to Hickson element (2), in-service disease or
injury, the Board notes that the Veteran's service treatment
records [in addition to documents filed in connection with
prior benefits claims] have been lost. See a December 26,
2007 VA Memorandum. The Veteran's claims folder has been
reconstructed to the extent possible. In any event, the
Veteran has testified that he sought no medical treatment for
any lung condition while serving on active duty. See the
March 2009 hearing transcript, pages 11 and 12.
In support of his claim, the Veteran has submitted
photographs that show him and another member of his unit
working on and around a fuel pump and tank in Korea.
Additionally, the Veteran submitted a copy of his DD-214,
indicating his duties as a pipeline supervisor and his
service in Korea. The Veteran also testified that there were
instances in service where he was soaked with fuel while
working on the pipeline, and that he regularly worked around
fuel tanks and pumps and inhaled the fumes. See the March
2009 hearing transcript, pages 6-8.
Lay testimony is competent if it is limited to matters that
the witness has actually observed and is within the realm of
the witness' personal knowledge. See Barr v. Nicholson, 21
Vet. App. 303 (2007), citing Layno v. Brown, 6 Vet. App. 465,
467-69 (1994); see also 38 C.F.R. § 3.159(a)(2) [Competent
lay evidence means any evidence not requiring that the
proponent have specialized education, training or experience.
Lay evidence is competent if it is provided by a person who
has knowledge of the facts or circumstances and conveys
matters that can be observed and described by a lay person].
In this connection, the Veteran is certainly competent to
testify about his in-service experiences, to include whether
he inhaled fumes from regular exposure to fuel and fuel
equipment. The Board finds the Veteran's testimony to be
credible.
There is no evidence of record contrary to the Veteran's
assertions or to the evidence he has provided. Therefore,
the Board concludes that the evidence of record demonstrates
that the Veteran was exposed to fuel fumes while serving as a
pipeline supervisor during the Korean War. Accordingly,
Hickson element (2), in-service injury, is established.
With respect to Hickson element (3), medical nexus, the
Veteran has submitted a letter from his treating physician
which states, "[b]ecause of the long history of fibrotic
lung disease dating back to 1979 on chest x-ray[s], there is
a strong possibility that [the Veteran's] lungs were
irritated due to fuel exposure connected to his military
service." See the July 8, 2004 letter from D.M., D.O.
There is no medical opinion of record contrary to that of
D.M.
Indeed, the Veteran's post-service medical treatment records
ranging from 1979 to 2006 document instances of chest pain,
shortness of breath, and ultimately the Veteran's current
diagnoses of emphysema and fibrosis of the lungs.
The Board is prohibited from exercising its own independent
judgment to resolve medical questions. See Colvin v.
Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the
only medical evidence of record specifying the etiology of
the Veteran's current lung disability is above-referenced
medical opinion of the Veteran's treating physician, who
linked the disability to the Veteran's in-service exposure to
fuel fumes.
Therefore, Hickson element (3), and thus all elements, have
been met. The benefit sought on appeal is therefore granted.
ORDER
Entitlement to service connection for a lung disability is
granted.
____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs